Debris Removal: Eligibility of Force Account Labor Straight-Time Costs Under the Public Assistance Program for Hurricane Sandy, 46190-46194 [2014-18709]
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Federal Register / Vol. 79, No. 152 / Thursday, August 7, 2014 / Rules and Regulations
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Dated: July 24, 2014.
David L. Miller,
Associate Administrator, Federal Insurance
and Mitigation Administration, Department
of Homeland Security, Federal Emergency
Management Agency.
[FR Doc. 2014–18637 Filed 8–6–14; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 206
[Docket ID FEMA–2012–0004]
202–212–2340; or (email)
William.Roche@dhs.gov.
SUPPLEMENTARY INFORMATION:
This rule finalizes, without change, an
interim final rule (IFR) that published in
the Federal Register on November 9,
2012, authorizing reimbursement of
force account labor under the Public
Assistance Program for debris removal
work related to Hurricane Sandy.
Below, we provide (1) general
background on FEMA’s debris removal
program; (2) a discussion of the specific
IFR at issue, which deals with a narrow
band of debris removal activities related
to Hurricane Sandy; and (3) a discussion
of comments received on the IFR. A
series of regulatory analyses and
implementing language follow.
RIN 1660–AA75
I. Background
Debris Removal: Eligibility of Force
Account Labor Straight-Time Costs
Under the Public Assistance Program
for Hurricane Sandy
Every year, disasters strike
communities throughout the United
States. When an incident is of such
magnitude that it is beyond the
capabilities of the State, Tribal and local
governments to efficiently respond, a
Governor may request that the President
declare that an emergency or major
disaster exists in the State, under the
authority of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act (Stafford Act), 42 U.S.C.
5121–5207.
If the President declares an emergency
or major disaster, FEMA may award
Public Assistance grants to assist State
and local governments (including
Indian Tribal governments) and certain
private nonprofit (PNP) organizations,
as defined in subpart H of 44 CFR part
206 (collectively referred to as
‘‘applicants,’’ ‘‘grantees,’’ or
‘‘subgrantees’’), with the response to
and recovery from major disasters and
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule finalizes, without
change, an interim final rule that
published in the Federal Register on
November 9, 2012, authorizing
reimbursement of force account labor
under the Public Assistance Program for
debris removal work related to
Hurricane Sandy.
DATES: This final rule is effective
September 8, 2014.
FOR FURTHER INFORMATION CONTACT:
William Roche, Director, Public
Assistance Division, Federal Emergency
Management Agency, 500 C Street SW.,
Washington, DC 20472–3100, (phone)
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SUMMARY:
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emergencies. Specifically, the Public
Assistance Program provides assistance
for debris removal, emergency
protective measures, and permanent
restoration of infrastructure serving a
public purpose.
Sections 403(a)(3)(A), 407, and
502(a)(5) of the Stafford Act authorize
FEMA to provide assistance to eligible
applicants to remove debris from public
and private property following a
Presidential major disaster or emergency
declaration, when in the public interest.
See 42 U.S.C. 5170b(a)(3)(A), 5173, and
5192. Removal must be necessary to
eliminate immediate threats to lives,
public health, and safety; eliminate
immediate threats of significant damage
to improved public or private property;
or ensure the economic recovery of the
affected community-at-large.1 See 44
CFR 206.224(a). The debris must be the
result of the disaster and located in the
disaster area, and the applicant must
have the legal responsibility to remove
the debris. See 44 CFR 206.223(a). To
ensure these requirements are met,
FEMA has issued extensive guidance on
oversight processes and procedures to
monitor debris removal activities.
In general, FEMA regulations at 44
CFR 206.228 authorize reimbursement
of overtime, but not regular time, for an
applicant’s own labor forces and
equipment, referred to as ‘‘force account
labor,’’ performing debris removal work.
The regular time (also called ‘‘straight1 In 44 CFR 206.224, FEMA also defines debris
removal to be in the ‘‘public interest’’ when
necessary to mitigate the risk to life and property
by removing substantially damaged structures and
associated appurtenances as needed to convert
property acquired through a FEMA hazard
mitigation program to uses compatible with open
space, recreation, or wetlands management
practices. See 44 CFR 206.224(a)(4).
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time’’) salaries and benefits of
permanently employed personnel are
generally not eligible in calculating
allowable costs. However, FEMA can
reimburse reasonable costs associated
with a debris contract, including the
cost of contract workers’ regular time as
well as overtime. This creates an
incentive for applicants to contract for
debris removal work, even after
relatively small events which could
have been handled in part, or entirely,
by an applicant’s employees. State and
local applicants have long requested
reimbursement from FEMA for straighttime salaries for their force account
labor who were pulled away from their
normal day-to-day work to perform
debris removal operations.
The Fiscal Year (FY) 2007 Department
of Homeland Security Appropriations
Act (Appropriations Act), Public Law
109–295, authorized FEMA to conduct a
Public Assistance Pilot Program to
reduce the costs to the Federal
government of providing debris-related
assistance to States and local
governments, increase flexibility in the
administration of assistance, and
expedite the provision of assistance
under sections 403(a)(3)(A), 502(a)(5),
and 407 of the Stafford Act. 6 U.S.C.
777. Under the Force Account Labor
provision of the Pilot Program, FEMA
reimbursed the straight-time salaries
and benefits of the applicant’s
employees who performed disasterrelated debris and wreckage removal
work. FEMA’s objective in reimbursing
force account labor was to provide
applicants the opportunity and
incentive to use their own employees
for debris removal activities in
situations where applicants determine
that is the most appropriate method to
perform the work. In its evaluation of
the Pilot Program, FEMA found that
debris removal operations and
monitoring performed by force account
labor improved efficient and timely
debris removal by starting operations
more expeditiously, reducing delays
related to procuring and mobilizing
contractors, and decreasing complaints
and negotiations over costs and scopes
of work. The Pilot Program ended on
December 31, 2008.
was exceptional, covering major
portions of the Mid-Atlantic and
Northeast, and bringing devastation to
much of the Eastern seaboard. In
response to this event, FEMA issued the
IFR to accelerate the nation’s recovery
by maximizing the use of force account
labor.
The IFR revised 44 CFR 206.228(a)(2)
to allow for the reimbursement of
straight-or regular time salaries and
benefits of a grantee’s or subgrantee’s
permanently employed personnel for
debris removal work performed due to
Hurricane Sandy. In order to receive
reimbursement, force account labor
employees must work exclusively on
Hurricane Sandy debris removal. They
cannot combine Hurricane Sandy debris
removal work with their normal workrelated tasks or any other tasks,
including tasks related to emergencies
or major disasters declared by the
President before October 27, 2012.
Finally, reimbursement is restricted to
30 consecutive calendar days. These
provisions provide an incentive to
applicants to maximize the use of their
force account labor, thus lessening the
need to secure and oversee contract
labor, and encouraging them to allot 100
percent of the work time of their regular
staff to Hurricane Sandy debris removal,
thereby contributing to a quicker and
more efficient recovery.
Eligible activities include disasterrelated debris and wreckage removal
work for any major disaster or
emergency declared by the President on
or after October 27, 2012, in response to
Hurricane Sandy under Category A,
Debris Removal, and/or Category B,
Emergency Protective Measures. In
practice, FEMA treats debris removal
work the same whether it is under
Category A or under Category B.
Therefore, the IFR made straight-or
regular time salaries and benefits for an
eligible applicant’s force account labor
eligible in calculating the cost of eligible
Category A and/or Category B debris
removal work. The IFR did not allow for
the reimbursement of straight- or regular
time salaries and benefits of a grantee’s
or subgrantee’s permanently employed
personnel for any other emergency
protective measures under Category B.
II. Discussion of the Rule
This rule finalizes, without change,
the IFR that published in the Federal
Register on November 9, 2012 (77 FR
67285). The IFR implemented the Force
Account Labor procedure of the Public
Assistance Pilot Program for debris
removal work related to Hurricane
Sandy, a catastrophic disaster event of
unprecedented magnitude and severity.
The geographic breadth of this storm
Non-Substantive Changes
The IFR added a reference to
‘‘grantee’’ in paragraph (a)(2) of section
206.228; previously that section referred
only to ‘‘subgrantees.’’ The eligibility of
force account labor costs outlined in 44
CFR 206.228(a)(2) applies to grantees as
well as subgrantees. States and Tribes
act as the grantees for the Public
Assistance Program. Applicants who are
successful in obtaining Public
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Assistance are identified as
‘‘subgrantees.’’ Since State, Tribal, and
local government agencies are eligible
applicants for Public Assistance, States
may act as the grantee, as well as the
subgrantee. While most work is
performed by the subgrantees, it is
possible that grantees could perform
eligible debris removal and/or
permanent work, and therefore incur
straight-time force account labor costs
for those activities. To be more accurate,
the IFR added ‘‘grantee’’ to paragraph
(a)(2) of section 206.228. The IFR also
established a cross reference to the
exception for host state evacuation and
sheltering in 44 CFR 206.202.
Sandy Recovery Improvement Act of
2013 (SRIA)
After publication of the IFR, Public
Law 113–2 (SRIA) was enacted. Section
1102 of SRIA authorizes FEMA to
implement a pilot program for Public
Assistance ‘‘alternative procedures’’
until such time as FEMA can
promulgate such procedures via notice
and comment rulemaking. 42 U.S.C.
5189f(f). One of these alternative
procedures includes reimbursement of
straight time for debris removal work.
42 U.S.C. 5189f(e)(2)(D). FEMA initiated
a pilot program for debris alternative
procedures, including the provision for
reimbursement of straight time for
debris removal work, in June of 2013.
FEMA plans to use information and data
gathered from the pilot program to
initiate a separate rulemaking related to
more comprehensive implementation of
the debris alternative procedures under
section 1102.
III. Discussion of Public Comments
FEMA received three comments on
the IFR (two private associations, one
private citizen). One commenter
recommended that FEMA reimburse
‘‘over-time hours of emergency and city
personnel or any hours that are
expended beyond the normal working
conditions.’’ FEMA currently does
reimburse overtime force account labor
costs for all emergency work. See 44
CFR 206.228(a)(2). The IFR allowed for
reimbursement of straight time for
certain Hurricane Sandy-related debris
removal activities, for the reasons
described above.
One commenter supported the IFR but
recommended that FEMA provide more
flexibility by allowing waivers and
extensions to the 30-day limitation.
FEMA respectfully declines to
incorporate the commenter’s
recommendation. Waivers and
extensions would create an
administrative burden and would
ultimately delay debris removal
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operations. This rule was instituted in
the weeks immediately following Sandy
to support as expeditious a recovery as
possible from that storm; the focus of
the rule was on recovery from the
immediate aftermath. FEMA chose 30
days to capture that period. Therefore,
FEMA has elected not to allow waivers
of and extensions to the 30-day
limitation.
One commenter inquired whether the
IFR applied to eligible nonprofit entities
(specifically rural electric cooperatives).
FEMA responds that nonprofit entities,
including rural electric cooperatives, are
eligible for Public Assistance pursuant
to 44 CFR 206.221 and 44 CFR 206.222.
The straight- or regular time salaries and
benefits of personnel of eligible
nonprofit entities, including rural
electric cooperatives, would be eligible
if they otherwise meet the criteria of the
IFR, that is, the debris removal work is
performed as the result of Hurricane
Sandy and is the only work performed
by straight-time personnel for the
relevant timeframe.
The commenter also suggested that
FEMA apply the IFR to all major
disasters and emergencies rather than
limiting it to Hurricane Sandy work.
FEMA plans to use information and data
gathered from the pilot program to
initiate a separate rulemaking related to
more comprehensive implementation of
the debris alternative procedures under
section 1102.
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IV. Regulatory Analysis
A. National Environmental Policy Act
(NEPA)
Under the National Environmental
Policy Act of 1969 (NEPA), as amended,
42 U.S.C. 42 U.S.C. 4321 et. seq., an
agency must prepare an environmental
assessment or environmental impact
statement for any rulemaking that
significantly affects the quality of the
human environment. As explained
below, FEMA has determined that this
rulemaking does not significantly affect
the quality of the human environment
and consequently has not prepared an
environmental assessment or
environmental impact statement.
Section 316 of the Stafford Act
exempts from the NEPA requirements
debris removal actions undertaken
under Sections 402, 403, 407, or 502 of
the Act. Rulemaking actions related to
actions statutorily excluded are not
themselves excluded from the
application of NEPA. NEPA
implementing regulations governing
FEMA activities at 44 CFR 10.8(d)(2)(ii)
categorically exclude the preparation,
revision, and adoption of regulations
from the preparation of an EA or EIS,
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where the rule relates to actions that
qualify for categorical exclusions.
FEMA’s ‘‘List of exclusion categories’’ at
44 CFR 10.8(d)(2)(ii) categorically
excludes the preparation, revision, and
adoption of regulations related to
actions that qualify for categorical
exclusions. Further, essential assistance
under section 403 and debris removal
under section 407 of the Stafford Act are
categorically excluded at 44 CFR
10.8(d)(2)(xix)(B) and (C). These
categorical exclusions cover all debris
removal actions under the Stafford Act.
Finally, FEMA has evaluated the
potential for extraordinary
circumstances as required in 44 CFR
10.8(d)(3) and determined that the
procedure authorized under this rule
does not change its environmental
effect. The straight-time force account
labor provision does not change the
nature or extent of debris removal
activities reimbursed by FEMA. The
potential for reimbursement of straighttime force account labor provides
applicants with more flexibility to
perform debris removal work with their
own employees in addition to, or in
place of, contractors, but does not affect
the eligibility of debris removal actions
under this Program. An environmental
assessment was not prepared for this
rulemaking action because a categorical
exclusion applies and no extraordinary
circumstances exist.
B. Paperwork Reduction Act of 1995
As required by the Paperwork
Reduction Act of 1995 (PRA), as
amended, 44 U.S.C. 3501 et seq., an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless the
collection of information displays a
valid control number. The collection of
information associated with the Public
Assistance Program is approved under
OMB Control No. 1660–0017, which
expires on June 30, 2016. This rule does
not contain any new collections of
information.
C. Executive Order 12866, Regulatory
Planning and Review & Executive Order
13563, Improving Regulation and
Regulatory Review
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
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reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has not been designated a ‘‘significant
regulatory action,’’ under section 3(f) of
Executive Order 12866. Accordingly,
the rule has not been reviewed by the
Office of Management and Budget.
The rule provides (unquantified)
benefits that are vitally important to
further FEMA’s mission. This rule
increases efficiency, flexibility, and
reduces the costs of performing debris
removal work after Hurricane Sandy.
The rule affects States, Indian Tribal
governments, local governments, as well
as certain private non-profit
organizations that have been affected by
Hurricane Sandy, by maximizing the
use of force account labor for debris
removal, thus accelerating the recovery
process.
Review of FEMA’s existing debris
regulations revealed that they could be
expanded to provide for more efficient
and timely debris removal after a
disaster. As discussed earlier in this
preamble, the reimbursement of force
account labor for debris removal under
the Pilot Program improved efficient
and timely debris removal. In
reimbursing force account labor, FEMA
provided applicants with an incentive
to perform the work in-house, as well as
improve oversight of debris removal
operations. Therefore, FEMA is
expanding the debris regulations to
incorporate this procedural
improvement in response to Hurricane
Sandy.
D. Executive Order 13132, Federalism
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), sets forth
principles and criteria that agencies
must adhere to in formulating and
implementing policies that have
federalism implications, that is,
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ Federal
agencies must closely examine the
statutory authority supporting any
action that would limit the
policymaking discretion of the States
and, to the extent practicable, must
consult with State and local officials
before implementing any such action.
FEMA has reviewed this rule under
Executive Order 13132 and has
concluded that this rule does not have
federalism implications as defined by
Executive Order 13132. FEMA has
determined that this rule does not
significantly affect the rights, roles, and
responsibilities of States, and involves
no preemption of State law nor does it
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limit State policymaking discretion.
This rulemaking amends a voluntary
grant program that may be used by
State, local and Tribal governments and
eligible private nonprofit organizations
to receive Federal grants to assist in the
recovery from disasters. States are not
required to seek grant funding, and this
rulemaking does not limit their
policymaking discretion.
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E. Executive Order 12898,
Environmental Justice
Under Executive Order 12898,
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, Feb. 16,
1994), as amended, FEMA incorporates
environmental justice into its policies
and programs. Executive Order 12898
requires each Federal agency to conduct
its programs, policies, and activities that
substantially affect human health or the
environment, in a manner that ensures
that those programs, policies, and
activities do not have the effect of
excluding persons from participation in
programs, denying persons the benefits
of programs, or subjecting persons to
discrimination because of race, color, or
national origin. FEMA has incorporated
environmental justice into its programs,
policies, and activities, as well as this
rulemaking. This proposed rulemaking
contains provisions that ensure that
FEMA’s activities will not have a
disproportionately high or adverse effect
on human health or the environment or
subject persons to discrimination
because of race, color, or national origin.
The purpose of this rule is to
implement a debris-related Public
Assistance Pilot Program procedure.
This rule reimburses straight- or regular
time wages for the permanent
employees of Public Assistance
applicants while they perform disasterrelated debris and wreckage removal
activities related to Hurricane Sandy for
a period of 30 consecutive calendar
days. Reimbursing straight- or regular
time for an applicant’s permanent
employees who perform debris removal
work will provide an incentive for
applicants to complete debris removal
work themselves rather than entering
into contracts to perform the work.
Removing debris expeditiously provides
value to the American people by
creating safer communities and
reducing loss of life and property,
enables communities to recover more
rapidly from disasters, and lessens the
financial impact of disasters on
individuals, the United States
Department of the Treasury, State, local,
and Tribal communities.
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No action that FEMA can anticipate
under this rule will have a
disproportionately high and adverse
human health or environmental effect
on any segment of the population.
Accordingly, the requirements of
Executive Order 12898 do not apply to
this rule.
F. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
FEMA has reviewed this rule under
Executive Order 13175 ‘‘Consultation
and Coordination with Indian Tribal
Governments’’ (65 FR 67249, Nov. 9,
2000). Under Executive Order 13175,
FEMA may not issue a regulation that
has Tribal implications, that imposes
substantial direct compliance costs on
Indian Tribal governments, and that is
not required by statute. In reviewing
this rule, FEMA finds that because
Indian Tribal governments are
potentially eligible applicants under the
Public Assistance Program, this rule
may impact Indian Tribal governments.
However, this rule does not have ‘‘tribal
implications’’ as defined in the
Executive Order. Eligibility to receive
reimbursement for force account labor
for debris removal operations will not
have a substantial direct effect on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
This rule does not impose substantial
direct compliance costs on Indian Tribal
governments nor does it preempt tribal
law, impair treaty rights nor limit the
self-governing powers of Indian Tribal
governments.
G. Regulatory Flexibility Act Statement
Under the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601–612, and section
213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, 5
U.S.C. 601 note, agencies must consider
the impact of their rulemakings on
‘‘small entities’’ (small businesses, small
organizations and local governments).
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. This
rule did not require a notice of proposed
rulemaking and therefore is exempt
from the requirements of the RFA.
H. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA), 2 U.S.C. 1501 et seq.,
requires each Federal agency, to the
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46193
extent permitted by law, to prepare a
written assessment of the effects of any
Federal mandate in a proposed or final
agency rule that may result in the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. UMRA exempts from its
definition of ‘‘Federal
intergovernmental mandate’’ regulations
that establish conditions of Federal
assistance or provide for emergency
assistance or relief at the request of any
State, local, or Tribal government.
Therefore, this rule is not an unfunded
Federal mandate under that Act.
I. Executive Order 12988, Civil Justice
Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, ‘‘Civil Justice Reform’’ (61
FR 4729, Feb. 7, 1996), to minimize
litigation, eliminate ambiguity, and
reduce burden.
J. Executive Order 12630, Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
FEMA has reviewed this rule under
Executive Order 12630, ‘‘Governmental
Actions and Interference with
Constitutionally Protected Property
Rights’’ (53 FR 8859, Mar. 18, 1988) as
supplemented by Executive Order
13406, ‘‘Protecting the Property Rights
of the American People’’ (71 FR 36973,
June 28, 2006). Sections 403(a)(3)(A)
and 407 of the Stafford Act, 42 U.S.C.
5170b and 5173, respectively, provide
FEMA authority to fund debris removal
from private property provided that the
State or local government arranges an
unconditional authorization for removal
of the debris, and agrees to indemnify
the Federal government against any
claim arising from the removal. The
regulations implementing Sections 403
and 407 of the Stafford Act at 44 CFR
206.224 establish the requirement that
debris removal be in the ‘‘public
interest’’ in order to be eligible for
reimbursement. Generally, debris
removal from private property following
a disaster is the responsibility of the
property owner. However, large-scale
disasters may deposit enormous
quantities of debris on private property
over a large area resulting in widespread
immediate threats to the public-at-large.
In these cases, the State or local
government may need to enter private
property to remove debris to: Eliminate
immediate threats to life, public health,
and safety; eliminate immediate threats
of significant damage to improved
property; or ensure economic recovery
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of the affected community to the benefit
of the community-at-large. In these
situations, debris removal from private
property may be considered to be in the
public interest and thus may be eligible
for reimbursement under the Public
Assistance Program. See 44 CFR
206.224(b). FEMA will work with States
affected by a disaster to designate those
areas where the debris is so widespread
that removal of the debris from private
property is in the ‘‘public interest’’
pursuant to 44 CFR 206.224, and thus is
eligible for FEMA Public Assistance
reimbursement on a case-by-case basis.
This rule will not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630.
K. Congressional Review of Agency
Rulemaking
FEMA is sending this rule to Congress
and to the Government Accountability
Office pursuant to the Congressional
Review of Agency Rulemaking Act
(Congressional Review Act)(CRA),
Public Law 104–121, 110 Stat. 873
(March 29, 1996) (5 U.S.C. 801 et seq).
This rule is not a ‘‘major rule’’ within
the meaning of the CRA.
List of Subjects in 44 CFR Part 206
Administrative practice and
procedure, Coastal zone, Community
facilities, Disaster assistance, Fire
prevention, Grant programs-housing and
community development, Housing,
Insurance, Intergovernmental relations,
Loan programs-housing and community
development, Natural resources,
Penalties, Reporting and recordkeeping
requirements.
PART 206—FEDERAL DISASTER
ASSISTANCE
Accordingly, 44 CFR 206.228 of the
interim final rule published on
November 9, 2012 (77 FR 67285) is
adopted as a final rule without change.
Dated: August 1, 2014.
W. Craig Fugate,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2014–18709 Filed 8–6–14; 8:45 am]
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BILLING CODE 9111–23–P
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107 and 109
[Docket No. PHMSA–2012–0258 (HM–258A)]
RIN 2137–AE97
Hazardous Materials: Failure To Pay
Civil Penalties
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Final rule.
AGENCY:
PHMSA is amending its
hazardous materials procedural
regulations. Specifically, this final rule
prohibits a person who fails to pay a
civil penalty as ordered, or fails to abide
by a payment agreement, from
performing activities regulated by the
Hazardous Materials Regulations until
payment is made.
DATES: This final rule is effective
September 8, 2014.
FOR FURTHER INFORMATION CONTACT:
Tyler Patterson, Office of Chief Counsel,
telephone (202) 366–0505, Pipeline and
Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey Ave.
SE., Washington, DC 20590–0001.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. Overview of Penalty Procedures
A. Pipeline and Hazardous Materials Safety
Administration
B. Federal Aviation Administration
C. Federal Motor Carrier Safety
Administration
D. Federal Railroad Administration
II. Overview of Mandated Changes to the
Penalty Procedures
III. Discussion of the Comments on the
Notice of Proposed Rulemaking
IV. Summary of the Final Rule
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866, Executive Order
13610, Executive Order 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Policies and
Procedures
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Executive Order 13609 and International
Trade Analysis
J. Environmental Assessment
K. Privacy Act
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
I. Overview of Penalty Procedures
Under authority delegated by the
Secretary, four agencies within the
Department of Transportation (DOT)
enforce the Hazardous Materials
Regulations (HMR), 49 CFR Parts 171–
180, and other regulations, approvals,
special permits, and orders issued under
Federal Hazardous Material
Transportation Law (Hazmat Law), 49
U.S.C. 5101 et seq.; the Federal Aviation
Administration (FAA), 49 CFR 1.83(d);
the Federal Motor Carrier Safety
Administration (FMCSA), 49 CFR
1.87(d); the Federal Railroad
Administration (FRA), 49 CFR 1.89(j);
and the Pipeline and Hazardous
Materials Safety Administration
(PHMSA), 49 CFR 1.97(b).
Although the United States Coast
Guard (USCG) also is authorized to
enforce the HMR in connection with
certain transportation or shipment of
hazardous materials by vessel, nothing
in this rule affects USCG’s enforcement
authority with respect to transportation
of hazardous materials by water. The
authority originated with the Secretary
and was first delegated to USCG prior to
2003, when USCG was made part of the
Department of Homeland Security.
Enforcement authority over ‘‘bulk
transportation of hazardous materials
that are loaded or carried on board a
vessel without benefit of containers or
labels, and received and handled by the
vessel without mark or count, and
regulations and exemptions governing
ship’s stores and supplies’’ was also
transferred in 2003 to the USCG. DHS
Delegation No. 0170, Sec. 2(99) &
2(100); see also 6 U.S.C. 457 and
551(d)(2). DOT will continue to
coordinate its inspections,
investigations, and enforcement actions
with the USCG through a Memorandum
of Understanding (MOU) or otherwise,
to avoid duplicative or conflicting
efforts.
The rules of practice for hazardous
materials penalty proceedings are
governed by each agency’s delegated
regulatory authority. Each agency
affected by this final rule will have the
authority to apply these provisions as an
augmentation of its current enforcement
and debt collection practices after an
enforcement action has been fully
adjudicated and the entity ordered to
pay a penalty has failed to do so.
A. Pipeline and Hazardous Materials
Safety Administration
PHMSA’s enforcement procedures
related to violation(s) of the HMR are
described in 49 CFR Part 107, Subpart
D. Violations that do not substantially
impact safety are handled through the
E:\FR\FM\07AUR1.SGM
07AUR1
]]>Agencies
[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Rules and Regulations]
[Pages 46190-46194]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18709]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2012-0004]
RIN 1660-AA75
Debris Removal: Eligibility of Force Account Labor Straight-Time
Costs Under the Public Assistance Program for Hurricane Sandy
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule finalizes, without change, an interim final rule
that published in the Federal Register on November 9, 2012, authorizing
reimbursement of force account labor under the Public Assistance
Program for debris removal work related to Hurricane Sandy.
DATES: This final rule is effective September 8, 2014.
FOR FURTHER INFORMATION CONTACT: William Roche, Director, Public
Assistance Division, Federal Emergency Management Agency, 500 C Street
SW., Washington, DC 20472-3100, (phone) 202-212-2340; or (email)
William.Roche@dhs.gov.
SUPPLEMENTARY INFORMATION:
This rule finalizes, without change, an interim final rule (IFR)
that published in the Federal Register on November 9, 2012, authorizing
reimbursement of force account labor under the Public Assistance
Program for debris removal work related to Hurricane Sandy. Below, we
provide (1) general background on FEMA's debris removal program; (2) a
discussion of the specific IFR at issue, which deals with a narrow band
of debris removal activities related to Hurricane Sandy; and (3) a
discussion of comments received on the IFR. A series of regulatory
analyses and implementing language follow.
I. Background
Every year, disasters strike communities throughout the United
States. When an incident is of such magnitude that it is beyond the
capabilities of the State, Tribal and local governments to efficiently
respond, a Governor may request that the President declare that an
emergency or major disaster exists in the State, under the authority of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act), 42 U.S.C. 5121-5207.
If the President declares an emergency or major disaster, FEMA may
award Public Assistance grants to assist State and local governments
(including Indian Tribal governments) and certain private nonprofit
(PNP) organizations, as defined in subpart H of 44 CFR part 206
(collectively referred to as ``applicants,'' ``grantees,'' or
``subgrantees''), with the response to and recovery from major
disasters and emergencies. Specifically, the Public Assistance Program
provides assistance for debris removal, emergency protective measures,
and permanent restoration of infrastructure serving a public purpose.
Sections 403(a)(3)(A), 407, and 502(a)(5) of the Stafford Act
authorize FEMA to provide assistance to eligible applicants to remove
debris from public and private property following a Presidential major
disaster or emergency declaration, when in the public interest. See 42
U.S.C. 5170b(a)(3)(A), 5173, and 5192. Removal must be necessary to
eliminate immediate threats to lives, public health, and safety;
eliminate immediate threats of significant damage to improved public or
private property; or ensure the economic recovery of the affected
community-at-large.\1\ See 44 CFR 206.224(a). The debris must be the
result of the disaster and located in the disaster area, and the
applicant must have the legal responsibility to remove the debris. See
44 CFR 206.223(a). To ensure these requirements are met, FEMA has
issued extensive guidance on oversight processes and procedures to
monitor debris removal activities.
---------------------------------------------------------------------------
\1\ In 44 CFR 206.224, FEMA also defines debris removal to be in
the ``public interest'' when necessary to mitigate the risk to life
and property by removing substantially damaged structures and
associated appurtenances as needed to convert property acquired
through a FEMA hazard mitigation program to uses compatible with
open space, recreation, or wetlands management practices. See 44 CFR
206.224(a)(4).
---------------------------------------------------------------------------
In general, FEMA regulations at 44 CFR 206.228 authorize
reimbursement of overtime, but not regular time, for an applicant's own
labor forces and equipment, referred to as ``force account labor,''
performing debris removal work. The regular time (also called
``straight-
[[Page 46191]]
time'') salaries and benefits of permanently employed personnel are
generally not eligible in calculating allowable costs. However, FEMA
can reimburse reasonable costs associated with a debris contract,
including the cost of contract workers' regular time as well as
overtime. This creates an incentive for applicants to contract for
debris removal work, even after relatively small events which could
have been handled in part, or entirely, by an applicant's employees.
State and local applicants have long requested reimbursement from FEMA
for straight-time salaries for their force account labor who were
pulled away from their normal day-to-day work to perform debris removal
operations.
The Fiscal Year (FY) 2007 Department of Homeland Security
Appropriations Act (Appropriations Act), Public Law 109-295, authorized
FEMA to conduct a Public Assistance Pilot Program to reduce the costs
to the Federal government of providing debris-related assistance to
States and local governments, increase flexibility in the
administration of assistance, and expedite the provision of assistance
under sections 403(a)(3)(A), 502(a)(5), and 407 of the Stafford Act. 6
U.S.C. 777. Under the Force Account Labor provision of the Pilot
Program, FEMA reimbursed the straight-time salaries and benefits of the
applicant's employees who performed disaster-related debris and
wreckage removal work. FEMA's objective in reimbursing force account
labor was to provide applicants the opportunity and incentive to use
their own employees for debris removal activities in situations where
applicants determine that is the most appropriate method to perform the
work. In its evaluation of the Pilot Program, FEMA found that debris
removal operations and monitoring performed by force account labor
improved efficient and timely debris removal by starting operations
more expeditiously, reducing delays related to procuring and mobilizing
contractors, and decreasing complaints and negotiations over costs and
scopes of work. The Pilot Program ended on December 31, 2008.
II. Discussion of the Rule
This rule finalizes, without change, the IFR that published in the
Federal Register on November 9, 2012 (77 FR 67285). The IFR implemented
the Force Account Labor procedure of the Public Assistance Pilot
Program for debris removal work related to Hurricane Sandy, a
catastrophic disaster event of unprecedented magnitude and severity.
The geographic breadth of this storm was exceptional, covering major
portions of the Mid-Atlantic and Northeast, and bringing devastation to
much of the Eastern seaboard. In response to this event, FEMA issued
the IFR to accelerate the nation's recovery by maximizing the use of
force account labor.
The IFR revised 44 CFR 206.228(a)(2) to allow for the reimbursement
of straight-or regular time salaries and benefits of a grantee's or
subgrantee's permanently employed personnel for debris removal work
performed due to Hurricane Sandy. In order to receive reimbursement,
force account labor employees must work exclusively on Hurricane Sandy
debris removal. They cannot combine Hurricane Sandy debris removal work
with their normal work-related tasks or any other tasks, including
tasks related to emergencies or major disasters declared by the
President before October 27, 2012. Finally, reimbursement is restricted
to 30 consecutive calendar days. These provisions provide an incentive
to applicants to maximize the use of their force account labor, thus
lessening the need to secure and oversee contract labor, and
encouraging them to allot 100 percent of the work time of their regular
staff to Hurricane Sandy debris removal, thereby contributing to a
quicker and more efficient recovery.
Eligible activities include disaster-related debris and wreckage
removal work for any major disaster or emergency declared by the
President on or after October 27, 2012, in response to Hurricane Sandy
under Category A, Debris Removal, and/or Category B, Emergency
Protective Measures. In practice, FEMA treats debris removal work the
same whether it is under Category A or under Category B. Therefore, the
IFR made straight-or regular time salaries and benefits for an eligible
applicant's force account labor eligible in calculating the cost of
eligible Category A and/or Category B debris removal work. The IFR did
not allow for the reimbursement of straight- or regular time salaries
and benefits of a grantee's or subgrantee's permanently employed
personnel for any other emergency protective measures under Category B.
Non-Substantive Changes
The IFR added a reference to ``grantee'' in paragraph (a)(2) of
section 206.228; previously that section referred only to
``subgrantees.'' The eligibility of force account labor costs outlined
in 44 CFR 206.228(a)(2) applies to grantees as well as subgrantees.
States and Tribes act as the grantees for the Public Assistance
Program. Applicants who are successful in obtaining Public Assistance
are identified as ``subgrantees.'' Since State, Tribal, and local
government agencies are eligible applicants for Public Assistance,
States may act as the grantee, as well as the subgrantee. While most
work is performed by the subgrantees, it is possible that grantees
could perform eligible debris removal and/or permanent work, and
therefore incur straight-time force account labor costs for those
activities. To be more accurate, the IFR added ``grantee'' to paragraph
(a)(2) of section 206.228. The IFR also established a cross reference
to the exception for host state evacuation and sheltering in 44 CFR
206.202.
Sandy Recovery Improvement Act of 2013 (SRIA)
After publication of the IFR, Public Law 113-2 (SRIA) was enacted.
Section 1102 of SRIA authorizes FEMA to implement a pilot program for
Public Assistance ``alternative procedures'' until such time as FEMA
can promulgate such procedures via notice and comment rulemaking. 42
U.S.C. 5189f(f). One of these alternative procedures includes
reimbursement of straight time for debris removal work. 42 U.S.C.
5189f(e)(2)(D). FEMA initiated a pilot program for debris alternative
procedures, including the provision for reimbursement of straight time
for debris removal work, in June of 2013. FEMA plans to use information
and data gathered from the pilot program to initiate a separate
rulemaking related to more comprehensive implementation of the debris
alternative procedures under section 1102.
III. Discussion of Public Comments
FEMA received three comments on the IFR (two private associations,
one private citizen). One commenter recommended that FEMA reimburse
``over-time hours of emergency and city personnel or any hours that are
expended beyond the normal working conditions.'' FEMA currently does
reimburse overtime force account labor costs for all emergency work.
See 44 CFR 206.228(a)(2). The IFR allowed for reimbursement of straight
time for certain Hurricane Sandy-related debris removal activities, for
the reasons described above.
One commenter supported the IFR but recommended that FEMA provide
more flexibility by allowing waivers and extensions to the 30-day
limitation. FEMA respectfully declines to incorporate the commenter's
recommendation. Waivers and extensions would create an administrative
burden and would ultimately delay debris removal
[[Page 46192]]
operations. This rule was instituted in the weeks immediately following
Sandy to support as expeditious a recovery as possible from that storm;
the focus of the rule was on recovery from the immediate aftermath.
FEMA chose 30 days to capture that period. Therefore, FEMA has elected
not to allow waivers of and extensions to the 30-day limitation.
One commenter inquired whether the IFR applied to eligible
nonprofit entities (specifically rural electric cooperatives). FEMA
responds that nonprofit entities, including rural electric
cooperatives, are eligible for Public Assistance pursuant to 44 CFR
206.221 and 44 CFR 206.222. The straight- or regular time salaries and
benefits of personnel of eligible nonprofit entities, including rural
electric cooperatives, would be eligible if they otherwise meet the
criteria of the IFR, that is, the debris removal work is performed as
the result of Hurricane Sandy and is the only work performed by
straight-time personnel for the relevant timeframe.
The commenter also suggested that FEMA apply the IFR to all major
disasters and emergencies rather than limiting it to Hurricane Sandy
work. FEMA plans to use information and data gathered from the pilot
program to initiate a separate rulemaking related to more comprehensive
implementation of the debris alternative procedures under section 1102.
IV. Regulatory Analysis
A. National Environmental Policy Act (NEPA)
Under the National Environmental Policy Act of 1969 (NEPA), as
amended, 42 U.S.C. 42 U.S.C. 4321 et. seq., an agency must prepare an
environmental assessment or environmental impact statement for any
rulemaking that significantly affects the quality of the human
environment. As explained below, FEMA has determined that this
rulemaking does not significantly affect the quality of the human
environment and consequently has not prepared an environmental
assessment or environmental impact statement.
Section 316 of the Stafford Act exempts from the NEPA requirements
debris removal actions undertaken under Sections 402, 403, 407, or 502
of the Act. Rulemaking actions related to actions statutorily excluded
are not themselves excluded from the application of NEPA. NEPA
implementing regulations governing FEMA activities at 44 CFR
10.8(d)(2)(ii) categorically exclude the preparation, revision, and
adoption of regulations from the preparation of an EA or EIS, where the
rule relates to actions that qualify for categorical exclusions. FEMA's
``List of exclusion categories'' at 44 CFR 10.8(d)(2)(ii) categorically
excludes the preparation, revision, and adoption of regulations related
to actions that qualify for categorical exclusions. Further, essential
assistance under section 403 and debris removal under section 407 of
the Stafford Act are categorically excluded at 44 CFR
10.8(d)(2)(xix)(B) and (C). These categorical exclusions cover all
debris removal actions under the Stafford Act.
Finally, FEMA has evaluated the potential for extraordinary
circumstances as required in 44 CFR 10.8(d)(3) and determined that the
procedure authorized under this rule does not change its environmental
effect. The straight-time force account labor provision does not change
the nature or extent of debris removal activities reimbursed by FEMA.
The potential for reimbursement of straight-time force account labor
provides applicants with more flexibility to perform debris removal
work with their own employees in addition to, or in place of,
contractors, but does not affect the eligibility of debris removal
actions under this Program. An environmental assessment was not
prepared for this rulemaking action because a categorical exclusion
applies and no extraordinary circumstances exist.
B. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), as
amended, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless the collection of information displays a valid control number.
The collection of information associated with the Public Assistance
Program is approved under OMB Control No. 1660-0017, which expires on
June 30, 2016. This rule does not contain any new collections of
information.
C. Executive Order 12866, Regulatory Planning and Review & Executive
Order 13563, Improving Regulation and Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget.
The rule provides (unquantified) benefits that are vitally
important to further FEMA's mission. This rule increases efficiency,
flexibility, and reduces the costs of performing debris removal work
after Hurricane Sandy. The rule affects States, Indian Tribal
governments, local governments, as well as certain private non-profit
organizations that have been affected by Hurricane Sandy, by maximizing
the use of force account labor for debris removal, thus accelerating
the recovery process.
Review of FEMA's existing debris regulations revealed that they
could be expanded to provide for more efficient and timely debris
removal after a disaster. As discussed earlier in this preamble, the
reimbursement of force account labor for debris removal under the Pilot
Program improved efficient and timely debris removal. In reimbursing
force account labor, FEMA provided applicants with an incentive to
perform the work in-house, as well as improve oversight of debris
removal operations. Therefore, FEMA is expanding the debris regulations
to incorporate this procedural improvement in response to Hurricane
Sandy.
D. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
sets forth principles and criteria that agencies must adhere to in
formulating and implementing policies that have federalism
implications, that is, regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Federal
agencies must closely examine the statutory authority supporting any
action that would limit the policymaking discretion of the States and,
to the extent practicable, must consult with State and local officials
before implementing any such action.
FEMA has reviewed this rule under Executive Order 13132 and has
concluded that this rule does not have federalism implications as
defined by Executive Order 13132. FEMA has determined that this rule
does not significantly affect the rights, roles, and responsibilities
of States, and involves no preemption of State law nor does it
[[Page 46193]]
limit State policymaking discretion. This rulemaking amends a voluntary
grant program that may be used by State, local and Tribal governments
and eligible private nonprofit organizations to receive Federal grants
to assist in the recovery from disasters. States are not required to
seek grant funding, and this rulemaking does not limit their
policymaking discretion.
E. Executive Order 12898, Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, Feb. 16, 1994), as amended, FEMA
incorporates environmental justice into its policies and programs.
Executive Order 12898 requires each Federal agency to conduct its
programs, policies, and activities that substantially affect human
health or the environment, in a manner that ensures that those
programs, policies, and activities do not have the effect of excluding
persons from participation in programs, denying persons the benefits of
programs, or subjecting persons to discrimination because of race,
color, or national origin. FEMA has incorporated environmental justice
into its programs, policies, and activities, as well as this
rulemaking. This proposed rulemaking contains provisions that ensure
that FEMA's activities will not have a disproportionately high or
adverse effect on human health or the environment or subject persons to
discrimination because of race, color, or national origin.
The purpose of this rule is to implement a debris-related Public
Assistance Pilot Program procedure. This rule reimburses straight- or
regular time wages for the permanent employees of Public Assistance
applicants while they perform disaster-related debris and wreckage
removal activities related to Hurricane Sandy for a period of 30
consecutive calendar days. Reimbursing straight- or regular time for an
applicant's permanent employees who perform debris removal work will
provide an incentive for applicants to complete debris removal work
themselves rather than entering into contracts to perform the work.
Removing debris expeditiously provides value to the American people by
creating safer communities and reducing loss of life and property,
enables communities to recover more rapidly from disasters, and lessens
the financial impact of disasters on individuals, the United States
Department of the Treasury, State, local, and Tribal communities.
No action that FEMA can anticipate under this rule will have a
disproportionately high and adverse human health or environmental
effect on any segment of the population. Accordingly, the requirements
of Executive Order 12898 do not apply to this rule.
F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
FEMA has reviewed this rule under Executive Order 13175
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, Nov. 9, 2000). Under Executive Order 13175, FEMA may not issue a
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute. In reviewing this rule, FEMA finds that because
Indian Tribal governments are potentially eligible applicants under the
Public Assistance Program, this rule may impact Indian Tribal
governments. However, this rule does not have ``tribal implications''
as defined in the Executive Order. Eligibility to receive reimbursement
for force account labor for debris removal operations will not have a
substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This rule does not impose substantial
direct compliance costs on Indian Tribal governments nor does it
preempt tribal law, impair treaty rights nor limit the self-governing
powers of Indian Tribal governments.
G. Regulatory Flexibility Act Statement
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of
their rulemakings on ``small entities'' (small businesses, small
organizations and local governments). The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule did not require a notice of proposed rulemaking and therefore
is exempt from the requirements of the RFA.
H. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et
seq., requires each Federal agency, to the extent permitted by law, to
prepare a written assessment of the effects of any Federal mandate in a
proposed or final agency rule that may result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. UMRA exempts from its definition of
``Federal intergovernmental mandate'' regulations that establish
conditions of Federal assistance or provide for emergency assistance or
relief at the request of any State, local, or Tribal government.
Therefore, this rule is not an unfunded Federal mandate under that Act.
I. Executive Order 12988, Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7,
1996), to minimize litigation, eliminate ambiguity, and reduce burden.
J. Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights
FEMA has reviewed this rule under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights'' (53 FR 8859, Mar. 18, 1988) as supplemented by
Executive Order 13406, ``Protecting the Property Rights of the American
People'' (71 FR 36973, June 28, 2006). Sections 403(a)(3)(A) and 407 of
the Stafford Act, 42 U.S.C. 5170b and 5173, respectively, provide FEMA
authority to fund debris removal from private property provided that
the State or local government arranges an unconditional authorization
for removal of the debris, and agrees to indemnify the Federal
government against any claim arising from the removal. The regulations
implementing Sections 403 and 407 of the Stafford Act at 44 CFR 206.224
establish the requirement that debris removal be in the ``public
interest'' in order to be eligible for reimbursement. Generally, debris
removal from private property following a disaster is the
responsibility of the property owner. However, large-scale disasters
may deposit enormous quantities of debris on private property over a
large area resulting in widespread immediate threats to the public-at-
large. In these cases, the State or local government may need to enter
private property to remove debris to: Eliminate immediate threats to
life, public health, and safety; eliminate immediate threats of
significant damage to improved property; or ensure economic recovery
[[Page 46194]]
of the affected community to the benefit of the community-at-large. In
these situations, debris removal from private property may be
considered to be in the public interest and thus may be eligible for
reimbursement under the Public Assistance Program. See 44 CFR
206.224(b). FEMA will work with States affected by a disaster to
designate those areas where the debris is so widespread that removal of
the debris from private property is in the ``public interest'' pursuant
to 44 CFR 206.224, and thus is eligible for FEMA Public Assistance
reimbursement on a case-by-case basis. This rule will not affect a
taking of private property or otherwise have taking implications under
Executive Order 12630.
K. Congressional Review of Agency Rulemaking
FEMA is sending this rule to Congress and to the Government
Accountability Office pursuant to the Congressional Review of Agency
Rulemaking Act (Congressional Review Act)(CRA), Public Law 104-121, 110
Stat. 873 (March 29, 1996) (5 U.S.C. 801 et seq). This rule is not a
``major rule'' within the meaning of the CRA.
List of Subjects in 44 CFR Part 206
Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs-housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.
PART 206--FEDERAL DISASTER ASSISTANCE
Accordingly, 44 CFR 206.228 of the interim final rule published on
November 9, 2012 (77 FR 67285) is adopted as a final rule without
change.
Dated: August 1, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-18709 Filed 8-6-14; 8:45 am]
BILLING CODE 9111-23-P
